Group items tagged

"The gathering of evidence is a key element in legal proceedings. Contrary to the regulations in Switzerland, the US legal order allows for pre-trial discovery, i.e. the parties are entrusted with the collecting of evidence at an early stage. This diverging approach becomes relevant in civil proceedings or arbitral proceedings in Switzerland with a linkage to the USA. The question arises if and how parties may profit from the US-American discovery procedure. This paper wants to answer the question by examining the use of evidence gathered in US-American discovery in international proceedings before Swiss courts as well as arbitral tribunals located in Switzerland. Part one concentrates on the possibilities and limitations of legal assistance pursuant to 28 U.S.C. § 1782. In part two the utilization of evidence collected in discovery procedure in Switzerland, in the event of a party seeking legal assistance individually, is evaluated. Thereby, special consideration is given to the Hague Evidence Convention and the Swiss ordre public. The paper concludes with a short summary of the author's findings and rationalizations why evidence collected in discovery proceedings should be admitted."

Marubeni America Corporation v. LBA Y.K., Case No. 08-3282 (2d Cir., June 17, 2009)

"Recent decisions on section 1782 could put US companies at a disadvantage in international arbitration." - Short overview of case law from Intel to Roz Trading.

by Stuart M. Riback (Siller Wilk LLP), prepared for the American Bar Association Business Law Section Spring Meeting 2007

by Abram I. Moore (Chicago) - Note on El Paso Corp. v. La Comision Ejecutiva Hidroelectrica Del Rio Lempa (5th Cir. Aug 6, 2009) and the two district court decisions in In re: Application of Operadora DB Mexico, S.A. de C. V. (Fla.) and In re An Arbitration in London, England (Ill.)

Note on Phoenix Meridian Equity Limited v Lyxor Asset management S.A., CICA No, 4 of 2009 (Court of Appeal of the Cayman Islands) - "The issue raised by the appeal is whether the Chief Justice erred in principle in refusing an application on behalf of Lyxor for an order restraining Phoenix from continuing proceedings in the United States District Court for the Southern District of New York under [ 28 U.S.C. § 1782 ] in the course of which it seeks to depose two individuals (...) who have given witness statements in, and are potential witnesses at the trial of the Cayman proceedings."

Antrag der KB Deutsche Industriebank AG vor dem D. Mass. auf Durchführung des Beweisverfahrens nach § 1782 gegen die Putnam Advisory Company, LLC, zwecks Verwendung in einem Verfahren vor dem High Court of Justice in London (Verteidigung gegen Klage der Calyon Credit Agricole CIB). Dem Antrag wurde am 26.1.2010 stattgegeben.

Note on In re Application of Chevron Corp., Misc. No. 19-111 (S.D.N.Y. May 6, 2010) with link to the not-officially-published decision

"Affirming for the first time that section 1782 applications extend to treaty arbitrations, a New York court has allowed Chevron to access 600 hours of unreleased footage from a 2009 documentary film, to be used as evidence in an arbitration with Ecuador and other legal proceedings."

In re Chevron Corp., 10 CV-2989, 2990-AW (D. Md. Nov. 24, 2010)

Ch. 14 Discovery in United States in Aid of Proceedings Outside U.S. Including 28 U.S.C. §1782

A party to a lawsuit in Germany may obtain documents from its adversary in the United States for use in the German litigation, according to the United States Court of Appeals for the Seventh Circuit. The Court's recent decision in Applications of Heraeus Kulzer, GmbH, for Orders Compelling Discovery for Use in a Foreign Proceeding v. Biomet, Inc., (7th Cir. Jan. 24, 2011), highlights the usefulness of the federal statute 28 U.S.C. § 1782 as a means of obtaining documents, testimony and other evidence from opposing parties or third parties located in the United States to support foreign litigation (and possibly arbitration).